A note on mandatory minimum sentences
Why "retribution" isn't what you may thinkPrince Arthur Herald, 17 December 2013

There is one reason why the imposition of mandatory minimum sentences was necessary: judges have not been giving strong enough punishments.

Or such is the perception held by enough people to make the issue of electoral importance. The Conservative Party long expressed a desire to institute so-called tough-on-crime measures and made this a plank of its platform in 2011. It should have surprised no one that, given the seeming endorsement of the public in the form of a majority government, such an initiative was placed at the top of the Conservatives’ legislative agenda.

Popularity does not equal cogency, of course, and people who opposed the idea before have every right to express their disagreement now. But it’s worth asking why support exists for stronger sentencing, whether this has a rational claim to relevance in the debate about punishment, and whether it bears relation to the question of statutory sentencing mandates.

I’m certain that support for harsher sentencing, especially for violent offenses, emanates primarily from one’s experience of the penal process in one’s own community. It might take only one case of insufficient sentencing for people to feel that something is wrong, though an accumulation of perceived laxity would strengthen this reaction. Such a sentiment is unlikely to be mitigated by reference to crime figures or other measures of efficiency in the system. Rightly or wrongly, there is a strong sense among people of an intrinsic justice to adequate punishment.

However, this is the very basis of indignation from tough-on-crime’s opponents. They say that the rehabilitation model (lenient sentences and alternatives to prison where possible) “works” — by which they mean containing measurably-bad statistical outcomes such as increases in crime and recidivism. On their account, imposing tough penalties for their own sake is nothing but retribution, which they caricature as the base pursuit of score-settling and revenge with no viable purpose.

Actually, the principle of retribution (retributivism) is a serious philosophy of punishment with a straightforward thesis: wrongdoers should be punished because they deserve to be punished, and their penalties should accord with their desert.

This may initially seem like the blueprint for medieval punitive practices, but it is important to note that retributivism cuts both ways. Yes, it admonishes sentencing that is too light; but retributivism also opposes punishments that are too severe, if they are indeed undeserved by the wrongdoer. Giving the death penalty for a parking violation would not only be wrong on grounds of utility (though it would probably make streets a lot less crowded), but also because the offender would not deserve such a penalty.

This is important because opponents of tough-on-crime are not above resorting to retributive arguments when they support their desired conclusion, notwithstanding their claim to be only concerned with what “works”. Indeed, one of their principal tactics is to invoke the person hard done by the system: someone either wrongfully accused or given a lengthy jail sentence for a seemingly-innocuous offense.

Here’s the problem: if retributive arguments against excessive punishment are admissible in public debates about criminal justice, then retributive arguments against inadequate punishment must also be allowed. This is not to say that the advocates of tougher sentencing have no case to answer, but their claims cannot be ignored by mere reference to crime figures. Unless, of course, supporters of the rehabilitation are willing to forgo their compelling point about tough-on-crime policies having their own set of victims: namely, people who ought to be treated with leniency in certain cases but are instead treated harshly without merit.

Which brings me to mandatory minimums. In principle, I agree with the critics. Mandated sentences remove a critical area of discretion for judges, who should rightly dole out lenient sentences when exceptional circumstances so dictate.

Consider, for example, the recent case of Roger Pleau, a Nova Scotia man who had been charged with drunk driving. On the night of his arrest, Pleau’s friend had fallen and sustained a head wound when neither man had a cell phone or could attract the attention of others. Believing his friend’s injury to be life-threatening, Pleau drove him to the hospital while under the influence of alcohol. A nurse called the police on the rightful suspicion that Pleau had broken the law.

The judge acquitted Pleau, but one could imagine a different judge finding him guilty and giving a significantly-lenient sentence such as a fine or community service, which would reinforce the imperative of driving sober without unjustly punishing the accused. Yet mandated minimum sentencing would prevent such a ruling.

However, the above presumes that judges wish to give lenient sentences only when warranted by the circumstances. Judging by public reaction in favour of tougher sentencing, this cannot be the case. So the problem is less with judicial discretion in hard cases than it is with the general judicial culture around punishment. And because the democratic institution of parliament is legally empowered vis-à-vis the Criminal Code, it follows that the people’s prerogative for stronger sentencing should indeed influence benchmark punitive measures.

This would suggest that despite the theoretical and practical problems, mandatory minimums can be defended on these narrow grounds. But only for the time being: once judges respond to the public’s prerogative and issue stronger sentences as a rule, such measures should be withdrawn so that judges may once again exercise their discretion in cases of novelty or exception.